Public Bill Committee

[Mr. Peter Atkinson in the Chair]

Clause 3

Power to make arrangements for the provision of probation services

Amendment proposed [this day]: No. 11, in clause 3, page 3, line 11, leave out ‘The Secretary of State’ and insert
‘Probation Boards and Probation Trusts.’.—[James Brokenshire.]

Question again proposed, That the amendment be made.

Peter Atkinson: I remind the Committee that with this we are discussing the following amendments: No. 12,in clause 3, page 3, line 25, at end insert—
‘( ) Arrangements under subsection (2) shall not apply in respect of functions specified in section 1(1)(a), 1(2)(a) and 1(2)(c).’.
No. 25, in clause 3, page 3, line 35, at end add—
‘(6) In carrying out their functions under this Part, and in particular in providing any assistance to courts and to the Parole Board, providers of probation services and their officers shall ensure that such assistance does not give rise to any conflict of interest between their obligation to give such advice impartially and the financial interest of the provider.’.

James Brokenshire: Thankyou, Mr. Atkinson. I welcome you to the Chair this afternoon.
I was midway through my comments on the arrangements for the individualisation of service and the need for services to be maintained. The Minister has said that there will be flexibility for probation officers not necessarily to follow a particular framework for an offender all the way through and that other parties could be involved. I hope that he is not rowing back from the Home Secretary’s commitment to a
“seamless and individual package of supervision and support from the start of their sentence to the end, overseen by a single offender manager”.
We have significant concerns on the structure of the clause, and I therefore wish to test the Committee’s view.

Question put, That the amendment be made:—

The Committee divided: Ayes 5, Noes 10.

Question accordingly negatived.

James Brokenshire: I beg to move amendmentNo. 18, in clause 3, page 3, line 25, at end insert—
‘(d) to adhere to the race equality duty under section 71(1) of the Race Relations Act 1976 (c. 47).’.
We move on to a more narrow and technical amendment relating to the Race Relations Act 1976. Amendment No. 18 seeks to insert an additional provision into clause 3(3) whereby there would be the ability to require persons carrying out probation services to adhere to the race equality duty under section 71(1) of the 1976 Act, which states:
“Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need...to eliminate unlawful racial discrimination; and...to promote equality of opportunity and good relations between persons of different racial groups.”
That issue and some concerns were raised by the Commission for Racial Equality, which stated in its briefing note on the Bill:
“NOMS, as part of the Home Office, is subject to the race equality duty. The race equality duty encompasses the General Statutory Duty...to promote race equality under section 71(1) of the Race Relations Act as amended...and accompanying specific duty to publish a Race Equality Scheme.”
The commission also said:
“Despite repeated letters from the CRE and meetings with NOMS and the Home Office over the last three years, there is no evidence that race equality criteria have been built into procurement policies and guidance for contractors or that the performance of contractors on race equality is being actively monitored. It therefore raises questions about the extent to which NOMS, through the Home Office, is meeting its statutory responsibilities under the Race Relations Act.”
I have tabled a probing amendment to highlight those concerns. Given the comments made by the CRE, I consider the issue important. I want to elicit a response from the Minister as to whether race equality responsibilities are being properly adhered to and, moving forward, what will happen on general compliance with that particular statute and duty.

Vernon Coaker: As this is the first time that I have had the opportunity to address the Committee, I welcome you to the Chair, Mr. Atkinson, and look forward to your chairmanship. I shall also take the opportunity to ask you to pass on to your fellow Chairman, Mr. Bayley, my best wishes for the Committee. I also welcome all members of the Committee to our deliberations. I am pleased to be here to support my fellow Minister, who will be dealing with most of the proceedings, but I will be makingthe odd—not literally—contribution, as and when appropriate.
I say to the hon. Member for Hornchurch that the Home Office and the National Offender Management Service take very seriously all their responsibilities under the law and seek to comply fully with all aspects of legislation. I am glad to have the opportunity provided by the amendment to discuss the crucial issue of diversity in both the employment of probation staff and the delivery of probation services. Although there is always room for improvement, the probation service has a good employment record. A report by Her Majesty’s inspectorate of probation in 2004 found that 16 per cent. of members of probation boards came from minority ethnic backgrounds. At the end of December 2005, 12.1 per cent. of probation staff were from minority ethnic backgrounds, compared with10.1 per cent. in the previous year and 9.8 per cent. in 2000. We want to build on that foundation.
The issue is also crucial in respect of service delivery. Members of the Committee do not need me to tell them that black and minority ethnic groups are disproportionately represented among those supervised by the probation service. Ensuring that the right services are available to meet the needs of all offenders is part of how we will reduce reoffending and better protect the public.
The benefits of commissioning include a clearer focus on the offending-related needs of the offender and innovative tailored service provision and delivery that is more relevant than simply equal services to offenders irrespective of their race, gender or other characteristics. That should help to achieve greater parity of outcomes.
Commissioners will set out diversity expectations and service delivery and say how they will be monitored. The commissioning framework to which regional commissioners and providers will be working as they negotiate service-level agreements for 2007-08 sets four priority areas, of which diversity is one. The aim is to deliver greater equality of access to services provided for offenders in prisons or supervised in the community, irrespective of their race, gender or other characteristics; to achieve greater parity of outcomes where that is not the case; and to promote greater confidence in the criminal justice system among those groups where such equality of access is lacking or weak.
I can tell the hon. Member for Hornchurch that there is no dispute about the need to act on diversity—the question is whether we need explicit provision in the Bill. I think that that is not necessary, as providers are already covered by the 1976 Act and, indeed, by the full range of other anti-discrimination legislation that is not mentioned in the amendment. However, I accept that a consequential amendment is necessary to section 71(1) of the 1976 Act, which lists local probation boards as one of the bodies to which the race equality duty applies. It does not need to be set out in the Bill in the way proposed, but in due course we will table a consequential amendment to ensure that the relevant duties continue to apply when probation boards cease to exist. In view of that clarification and assurance, I hope that the hon. Gentleman will ask leave to withdraw the amendment.

James Brokenshire: I thank the Minister for his response. This is my first opportunity to welcome him formally to the Committee, and I look forward to future debates as we proceed through the Bill.
I listened carefully to the Minister and was reassured by much of what he said. I hope that his message about the importance of some aspects of the proposal will be heard clearly in this Room and outside it. I agree with him that there are two ways of dealing with the issue: by amendment to the Bill now or by a further amendment on Report to amend the 1976 Act.
In the light of the Minister’s comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—

The Committee divided: Ayes 10, Noes 4.

Question accordingly agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4

Power to establish probation trusts

Question proposed, That the clause stand part of the Bill.

James Brokenshire: We move on to the power to establish probation trusts and the authority that is given to the Home Secretary by order to establish a probation trust, to alter its name and, ultimately, to dissolve it.
We seem to be continuing the theme of the top-down approach, in that this would see the Home Secretary acquire powers that are currently vested in probation boards. I hope that the Minister will be able to assist the Committee by answering my questions. If I understood him correctly this morning, he anticipates that the first probation trust will come into effect in April 2008. He mentioned the figure 42, which, I think, was the total number of trusts. Will he clarify whether a maximum number is envisaged, how they will be set up and what sort of rolling programme he has in mind for their establishment?
One thing that is made clear in the explanatory notes rather than on the face of the Bill is the fact that it is not intended that a probation trust should be attached to a specific geographical area, which suggests that trusts will be nationwide rather than being anchored to a particular locality or geographical area. If that is the case, the Minister needs to explain how the system will operate. It has been suggested that there might be competition between probation trusts. Again, how will that operate if there is no geographical issue? And how will the framework or terms of reference be encapsulated with regard to how trusts are intended to operate? If there is no local link, which is what I understand by the reference to there being no geographical link, how will the locality issues be assumed within the system?
Many hon. Members have stressed the need for the provision of local services to maintain the positive aspects of rehabilitation and local input in the system. However, that does not seem to be assured in the Bill and the explanatory notes. The Minister might say that it could be stressed in the contractual arrangements or the orders establishing probation trusts, but the importance of local links is loud and clear, particularly for charitable and voluntary organisations, which are key players. Maintaining a permanent link is the glue of the system, which is important to its stability.
It has been said that the purpose of the trusts will be specified in the establishing orders mentioned in clause 4(1)(a). Those orders will include contracts for probation purposes, but not exclusively—subsection (2) states that they will include those purposes. Will the Minister explain what other purposes are envisaged for probation trusts? Will the purposes extend to prison services, so that we might have the reverse of the previous situation with the Prison Service being able to provide probation services? I look forward to the Minister’s response on that point.
Subsection (3)(b) mentions the possibility of other specified activities being carried out “anywhere in the world”. I wondered whether that was a new land grab by the Home Office to extend the extraterritoriality of its powers, but I understand that it relates to the “service courts” mentioned in paragraph (b)(i). Will the Minister confirm that that means courts martial or similar, or does it have another meaning? It is not a phrase that I have come across in this context, and clarification is needed of what is intended and whether those courts are why subsection (3)(b) refers to activities “anywhere in the world”. Are probation trusts to have that strange extended reach given to them?
There are various order-making powers in the clause, and subsection (4) contains the ability to restrict probation trusts in certain ways by prescribing limited activities for them. Will the Minister explain why that was felt to be required? One would have thought that the general flexibility of the clause would be sufficiently wide to give such latitude. Is the idea to create a geographical or other framework? I look forward to confirmation of the intention behind the subsection.
On a technical note, subsection (5) states:
“A purpose so specified which relates to the making or performance of contracts includes the carrying out of any activities relating to a contract of a relevant kind (including activities taking place before it is made or after it is terminated).”
The explanatory notes state that that power is needed to allow probation trusts to bid for contracts and deal with post-completion issues. However, bids might not lead to contracts. A bidder does not know whether they will be successful, because they are tendering. The clause and explanatory notes seem to suggest that the power is needed because of activities occurring before a contract is made.
I have a technical concern—if a contract is not made, as will be the case for unsuccessful tenders, is there a gap in the wording? Should the provision refer to prospective contracts as well as contracts? We require clarification whether the additional power is needed by probation trusts in order to make bids. Whatever we may feel about the general nature of the issue, it would be odd from a technical perspective if a probation trust were to act ultra vires in connection with unsuccessful contracts, but were protected in relation to successful tenders. There are certain questions that relate to the clarity of the intention behind the clause. I look forward to hearing the Minister’s answer to my specific points.

David Kidney: As in this morning’s sitting, I would like to ask the Minister two questions, each of which takes slightly longer than an intervention would permit.
First, I remind the Minister of the debate about consultation that we had on Thursday. I asked whether NOMS and the local management trust ought not to be required to make arrangement for an advisory board of some sort, which could be drawn from a pool of organisations provided by the Bill. Will the Minister consider whether clause 4 would be the place to make the requirement for an advisory board? It could just about be suggested that schedule 1 is the place for that, but this is a bigger issue for the main body of the Bill, rather than a schedule. I ask the Minister for clarification on that point.
Secondly, probation trusts may be set up by an order under clause 4. What role does the Minister see for Parliament in the scrutiny of an order that might be made to set up a trust? My reading of the Bill is that three kinds of order are contemplated. The first, with which we are all familiar, is the affirmative procedure order, whereby a draft is produced and both Houses have to vote positively for the order. The second type, with which we are also familiar, is the negative procedure, whereby the order must be published and Members can pray against it—there may or may not be a debate and a vote on it later. The third kind is a purely administrative order made by the Minister. In clause 28, in which the orders are explained, the order that is crucial to the whole Bill falls into the third, administrative, category, which I have just described. It is on a par with a commencement order in that the Minister has only to make it for it to take effect. Given the concerns that hon. Members have expressed about the lack of detail in the Bill on the big changes thatare being made, and the desire of hon. Members to scrutinise the Executive, should the order not be subject to an affirmative procedure, rather than an administrative process?

Mark Hunter: I shall focus my remarks on clause 4 and the specific provision for the creation of probation trusts. I will advance a couple of thoughts as to why I am not convinced that it is the right way forward, and I look forward to the Minister’s response. I have two main areas of concern. The first is the disruption to the service that might ensue from the creation of probation trusts, and the second is the equally important consideration of a lack of local accountability.
I will deal first with the potential disruption to the service. A number of hon. Members have already referred to the fact that NOMS has been established for only a relatively short time, since 2000. There is an argument that it has not had time fully to establish itself before being changed again. Although there is no general dispute that some improvement is required, we have concerns that the wholesale changes in the Bill could result in an increased reoffending rate, rather than the opposite effect, which it is designed to achieve.
There is also the possibility of even more people going missing while on probation, thus adding to the general confusion. With an already high reconviction rate among those on probation of 53 per cent., we cannot afford to risk creating even more confusion.
There are more effective ways of effecting change without unnecessary bureaucratic shifts. We have heard from hon. Members about the practice in Scotland, where community justice authorities of local elected councillors produce plans on how co-operation will be realised and how service delivery can be improved and enhanced.
We are still not clear about how probation trusts will differ from probation boards—I hope that the Minister will address that—except that, according to the papers, they will be more “business-led”. It would be helpful if the Minister could say how business people will be recruited to sit on the trusts and whether there will be some remuneration for the individuals involved. The case for replacing boards with business trusts has not yet been made. Probation boards should be community-led and should be a public service, with the public interest in sight at all times, not their wallets. The move away from probation trusts will stop that from happening.
On the lack of local accountability, probation boards had locally elected councillors and magistrates on them, whereas, according to the proposals, probation trusts will not. We need as many connections with the local community as is practically possible to ensure that the provision is community-led. Replacing boards with trusts will, I fear, mean that there will no longer be any local accountability over how they are run. Local people will no longer have any influence over the probation service or how probation services in their local area are run. I am sure that the Minister and right hon. and hon. Members agree that it is hugely important that the local community should have faith in its probation services, in order to help with the rehabilitation of ex-prisoners and their acceptance into the community after their sentences have been served.
I am sure that there is also broad agreement that magistrates need to be fully involved in the process to ensure that courts are not unwilling to give out community sentences. They need to be assured of their success and effectiveness. I should be grateful if the Minister would address those concerns in his response.

Gerry Sutcliffe: I welcome you to this afternoon’s proceedings, Mr. Atkinson. I acknowledge the contribution that the hon. Member for Cheadle has made to the debate. I should point out to him that there is no confusion in relation to the Home Office—no matter how many times he says it, that does not make it right. It is clear what we are about and what we are trying to do. A number of problems are a cause for concern and need to be addressed, but there is no confusion—we are very clear. In July, the Home Secretary set out where we were heading in the reform of the Home Office. The hon. Gentleman will be pleased to know that we are making good progress, despite the odd hiccup.
The hon. Member for Hornchurch tried to claim that the issue is about top-down processes and centralisation, but it is not about that, although I know that I did not convince him in the debate on clause 3 and that he remains sceptical. We all agree that we want to achieve the same target, which is to reduce reoffending, and we also all agree that we should adopt a whole-community solution to offending. Tackling the problem is not just a matter for the criminal justice system or the probation service. We must adopt a whole-community solution if we are to deal with the issue adequately.
This morning, I talked about the cost to the economy of reoffending. I say that in the context of our debate about what clause 4 does. As has been said, local probation boards will cease to exist in their current form. Clause 7, which we shall come to later, makes the formal provision for that. Under clause 3,
“The Secretary of State may make contractual or other arrangements”
with a range of providers, including the voluntary, charitable and private sectors, as we have said, but that does not mean the end of the public sector. Duringthe break between Committee sittings, I met representatives of the trade union Amicus and its members from the probation service. They were firmly of the view that this was all about privatisation. I was pleased that I could reassure them that that was not the case; we then got down into a detailed discussion about the direction of travel.
The proposal certainly is not about getting rid of the public sector—far from it. Clause 4 gives the Secretary of State the power to establish probation trusts as the public sector provider with whom he may make these arrangements. This will be done, as was said, by an order that will set out the name and purposes of the trust. It is envisaged that trusts will continue to be linked to, and named after, their local area. There is no grand plan to take over the universe; it is about making sure that there is also local accountability. However, the order will not limit their activities to that area. So, a trust with particular expertise in one aspect of service delivery might deliver that service in another area as well as its own. The detail of this will not be specified in the order, but will be a matter for the contracts.
Clause 4(1)(c) also enables the Secretary of State to dissolve a trust by order. There are two main sets of circumstances in which that might happen. The first is if a trust failed to secure contracts, and the second is if two or more trusts agree together that they would be more effective by merging their operations. We would expect that sort of initiative to come from the trusts themselves, and I make it clear that there are no plans for mergers from the centre—they would have to be from discussions between the trusts.

James Brokenshire: As yet.

Gerry Sutcliffe: The hon. Gentleman says that, but as we go on to debate the criteria we believe that there may be opportunities. However, they will have to be identified by local communities and probation trusts in consultation with the wider community.
Clause 4 then goes on to give more detail about what the purposes of a trust may include. The main purpose, as subsection (2) makes clear, is
“the making or performance by the trust of contracts with the Secretary of State”
for the delivery of probation services. Subsection (3)(a) confirms that the purposes may also include the making or performance of contracts with another trust, or any other party, for the delivery of probation services.

Crispin Blunt: I have been reflecting on what the Minister has said about mergers and so on. It brings to mind the plan for police mergers that was eventually withdrawn after the most enormous amount of lobbying and effort. Can the Minister assure the Committee that there will be no plans from the centre for mergers of probation board trusts, and that any representations for changes in structure will come from the bottom up, not the top down?

Gerry Sutcliffe: I am grateful to the hon. Gentleman for his intervention. He will know of the evidence heard at the Home Office by the new Home Secretary. Having listened to the representations made, we have not proceeded down that route of amalgamations—although discussions are taking place about how we can get greater effectiveness and efficiency. As for the merger of probation trusts, we would expect that to come from the bottom up—the trusts themselves. However, we are clearly creating the framework for that opportunity to occur.
I return to subsection (3)(a), which we believe is important because, as indicated previously, we arekeen that providers develop partnerships between themselves, and that not all contracts are held directly by the Secretary of State. We want to have that innovation, and for people to work with each other. Subsection (3)(b) clarifies that a probation trust may deliver probation services to service courts “anywhere in the world” in the same way that probation boards do now. The hon. Member for Hornchurch is quite right about the service court martial. It is, in fact, a military court and the naval courts have that facility. Meanwhile, subsection (3)(c) confirms that the purposes may include other purposes set out in regulations.
Subsection (5) makes it clear that a trust’s purposes may include activities before and after a contract is in place. In other words, a trust may be established to bid for a contract in the first place, and may continue in existence after a contract has ended for as long as is necessary to wind up the businesses appropriately. It is worth pointing out here that the Bill does not require all trusts to be created at once; that is not what we intend to do. As I said this morning, this is no big bang and we will not rush these reforms in overnight. We want a measured approach, balancing the need for urgent improvements with the system’s ability to cope with change.
The hon. Member for Hornchurch asked me to confirm that the first trusts would be in place after April 2008. I am happy to do that. The others will follow in phases thereafter. We will shortly launch the consultation on the selection process and the criteria to be used in determining which board will move first to trust status. We want to work closely with the service and with our key stakeholders throughout that period. The process will be open and transparent.

James Brokenshire: The Minister has kindly confirmed that it is intended that the first trust willbe established on 1 April 2008. This morning, he mentioned the figure 42. Can he confirm the basis of that figure, and whether it is intended to cover all the probation trusts that he has in mind?

Gerry Sutcliffe: That is the number of existing boards, and they will have to meet the criteria if they want to become trusts. This is about innovation, and if all42 boards want to become trusts very quickly, I shall be very happy. There is nothing to prevent that from happening, but the likelihood is that they will develop over time. Their growth will depend on their performance, on the criteria that we have set out and on the skills that they develop.
The hon. Member for Cheadle asked who will be on the trusts and quoted a document that talked about their being business friendly. We aspire to involve business in the context of the wider community, not to prevent people from joining trusts. When I took over this role, I was concerned that there seemed to be a view abroad, particularly within the Probation Boards Association, that we were trying to prevent people from sitting on trusts and that all we wanted were sharp-suited business people who would take the service over. We do not see that as a solution.
We are trying to ensure that trusts are fully representative of local communities, so when we talk about who is to be on them, we are not trying to prescribe who should be there by saying that there is a list of those who must be on them. We want to offer the widest possible opportunities. We have just recruited the next set of chairs and vice-chairs. They represent a strong and wide-ranging field—councillors, business people and people from the voluntary sector—and I am happy about that, because it adds to what we want to achieve through the trusts.
My hon. Friend the Member for Stafford has discussed consultation, which he also mentioned the other day. I said that I would consider the idea of the advisory board, because I have some sympathy with it. On scrutiny, he asked about the order-making power. He is right to say that it is not there but that it is, as he set out, similar to the commencement orders, which are absolutely necessary for the contractual arrangements. There might be commercial reasons for not wanting to go back through the parliamentary process, but the scrutiny is in place in so far as the Secretary of State has to report back to Parliament. I would ask my hon. Friend to let me think about the issue in a bit more detail, because I am not entirely convinced by my own arguments or by the notes that I have received.

David Kidney: Just to give an example from this very debate, hon. Members have asked the Minister to give an assurance that mergers will not be forced from the centre in the future. What if an order were made in future to dissolve a couple of probation boards in order to force through a merger? I think that Parliament would want to be able to say that that was not what the Minister said at the time. The way to consider such a proposal would be through the statutory instrument procedure, which we will not have if this measure stays as it is.

Gerry Sutcliffe: That further emphasises the point that I want to go away and consider. I am aware of the commercial problems that might occur, and I want to balance them in deciding the way ahead. I am happy to find out what, if anything, can be done, and will let the Committee know my decision so that we can return to the matter at a later stage, if necessary.
We are not denying people the ability to serve on trusts. In fact, we want to encourage the right cross-section of people to do so. We believe that the orders set out in clause 4 are appropriate. With that—

Vernon Coaker: Reassurance.

Gerry Sutcliffe: That is the word I am looking for; I am grateful to my hon. Friend. With that reassurance, I hope that the Committee will support the clause.

Question put and agreed to.

Clause 4 ordered to stand part of the Bill.

Schedule 1

Probation trusts: further provisions

James Brokenshire: I beg to move amendment No. 7, in schedule 1, page 22, line 13, leave out ‘four’ and insert ‘five’.

Peter Atkinson: With this it will be convenient to discuss the following amendments:
No. 8, in schedule 1, page 22, line 15, at end insert—‘(c) a magistrate.’.
No. 38, in schedule 1, page 22, line 15, at end insert—
‘(c) a magistrate for the area in which the probation trust carries out its functions; and
(d) a local councillor for the area in which the probation trust carries out its functions.’.
No. 27, in schedule 1, page 22, line 18, at end insert—
‘3A (1) The chairman of a probation trust shall be a judge of the High Court or Crown Court.
(2) The remaining members of a probation trust shall include at least one of the following:
(a) a District Judge;
(b) a member of the Police Authority local to the area in which the probation trust carries out its functions;
(c) a qualified psychiatrist from the Health Trust local to the area in which the probation trust carries out its functions;
(d) a member of the local authority to the area in which the probation trust carries out its functions.
(3) In appointing the members of a probation trust, the Secretary of State shall have a duty to ensure that the trust’s membership is, to the extent reasonably practicable, representative of the population of the area in which the trust carries out its functions.’.

James Brokenshire: We move to some of the more detailed provisions on the functions and operations of the probation trusts. I have some more general questions and queries on the schedule as a whole, Mr. Atkinson, but if I am able to catch your eye and if the debate does not wander too widely I hope to raise those in a stand part debate.
Amendment No. 7 would change the minimum number of appointees for the probation trust. To a large extent it is a probing amendment to find out how the Government arrived at the number of four and, more generally, to probe the constitution of the membership. It raises various questions. Under the Bill, a probation trust will have a chairman and no fewer than four members will be appointed by the Secretary of State. A chief executive will also be appointed, but we shall come to that role in due course.
It would be of benefit to the Committee and more generally if the Minister were to explain how the process is intended to operate. Will there be an automatic transfer of existing probation board members if, as the Minister said, it is intended to take a gradualist approach in converting the probation board to a probation trust, or is it intended to have a more general re-advertisement for its membership? What requirements will there be for the chairman and ordinary members to have expertise, training or other qualifications?
Although the Secretary of State will have wide-ranging powers to appoint the relevant members, it would not be unreasonable to ensure clarity and certainty by providing that members who are appointed should have relevant experience. The Bill seems to be silent on that matter, and I would be grateful if the Minister explained the Government’s thinking. The Minister may say that he wants as broad a range of people as possible—indeed, he has probably said so already—but it is obviously important to  understand the basis on which selection would take place and whether it is envisaged that qualifications, expertise, training or other requirements would inform the decision-making process. We have already touched on the question of diversity. I am sure that that, too, will be relevant.
The chairman and the other board members will be appointed by the Home Secretary. My question is about the pool of resources from which he chooses. The question was raised earlier this afternoon, and mentioned in debates last week, whether including specific lists in the Bill would be appropriate, and particularly whether it would restrict or frame the choices.
A specific issue needs to be addressed in the context of the relationship between the probation trusts and the magistrates and judiciary—a point to which hon. Members have already alluded in their more general comments on clause 4. None the less, it is worth examining the question in further detail. Turning Point highlighted the specific importance of magistrates in its briefing notes. It said:
“Magistrates currently play a central role in short prison sentences and the bulk of community sentences. The National Offender Management Bill proposes ending the statutory requirement for the judiciary to be represented on Probation Boards. However no alternative representation has been considered. If judges are not fully involved in the probation service, their confidence in alternatives to prison will decline.”
I know that certain changes have happened in this field, but that view highlights concern about the implications if there is not an established link between the activities of probation trusts and the magistrates. If a formal link is not intended, as in our amendmentNo. 8, what do the Government propose? What arrangements do they envisage to promote that consultation and, indeed, confidence between magistrates and probation trusts? When magistrates give community sentences, for example, they have a relationship with the probation trust and a confidence that services will be provided appropriately. Therefore, magistrates can have confidence in the decisions that they have made.
Some people have highlighted a concern about the relationship between community sentences and other forms of disposal. I am sure that the Minister would not be happy if an inadvertent consequence of the Bill would be to add to one of his other problems, such as the ever-burgeoning prison estate, which he is trying to manage. The overcrowding of prisons and, therefore, the need for community sentences to be viewed with confidence is key to the decisions that magistrates make—based on the facts before them—as to the appropriate disposal for a particular offence. That is assuming that the offence gets before the magistrates and is not dealt with in some summary way, but we will have that debate on another occasion and it may well not be ruled in order in this context.
Comments also touch on the need for confidence in the system in ensuring local and locally accountable solutions. Rainer made the point well in its briefing note:
“Rainer believes that both probation trusts and other providers contracted to carry core offender management should have strong links with the local community, criminal justice system and particularly the judiciary. Probation Boards are currently required to include board members from amongst local magistrates and local authorities. Rainer believes that such links should be maintained and, indeed, widened to ensure that all agencies that have a core role to play in public protection and reducing reoffending are regularly involved in planning offender management. Trusts should appoint an advisory group composing representatives from key partners”—
the note goes on to list them.
I note that the Minister is prepared to consider the concept of an advisory board. There is a need to ensure that there is some sort of direct link with the community. Although the Minister has said that probation trusts are intended to be wider in their viewpoint, they will not necessarily be linked to a specific geographical location. Indeed, they may be encouraged to partner with other probation trusts or to develop certain specialisations that might have wider application.
That said, I still take it from the Minister that, at least currently, the geographical link is intended to be maintained by way of the contractual arrangements. In principle, a particular probation trust may be responsible for probation services in a particular geographical area. Therefore, my hon. Friends and I think that there is a need to maintain some form of established link with the community represented—from within which the probation services are to be provided—to ensure accountability and to ensure that local conditions are properly reflected. Obviously, the most effective way of doing that is to have on the probation trust members of the community, who will reflect its needs and aspirations. That is reflected in amendment No. 27, in which we suggest that a probation trust should be chaired by a judge of the High Court or Crown court to maintain judicial integrity. It also suggests that the remaining members of the board should include at least one of the persons listed—a district judge, a member of the local police authority, a qualified psychiatrist from the local health trust or a member of the local authority.
That is not prescriptive; we are saying not that members should come only from that list but that at least one member should. That would ring-fence a local connection in a probation trust. There is no such latitude in the Bill and all we have had is an indication from the Minister that he will consider setting up some sort of advisory board or link. I am sure that we shall return to the need for a local connection again and again, and I hope that the Minister explains his thinking even if we do not agree on how that connection should be provided.
It is important that members of probation trusts have the widest possible experience of the justice arena and a local community background. Through the amendments we seek to promote such a structure and build confidence in the judiciary, and greater partnership and shared responsibility between agencies and relevant bodies to provide a better service within the framework of the Bill.

Mark Hunter: I want to discuss amendment No. 38, although I will take the opportunity to say that I am sympathetic to the amendments in the name of the hon. and learned Member for Harborough and his hon. Friends, not least because they touch on similar ground.
The amendment addresses the issue of magistrates and local councillors being members of the new bodies. That is important if local connections are to be maintained and confidence in the system is not to be lost. I do not wish to plead a special case for councillors and magistrates, although I confess that some of my best friends are councillors and magistrates. However, naming those two groups would guarantee that important local connections were maintained. The amendment would create a legal obligation for one member of a trust to be a magistrate for the trust’s area and another a local councillor.
Why is the amendment needed? As we know, probation boards have local councillors and magistrates on them, and as the Bill stands the trusts will not. To be fair, the Minister has given every indication that he wishes them to be inclusive and that no section of society should find itself excluded. Nevertheless, guaranteeing the involvement of locally elected representatives and magistrates would be a better way to achieve that objective.
The Home Office says that trusts will primarily be made up of business people. I know that the Minister has said that it is not his intention that they will be people without local connections, appointed from on high and from all over the place, but we must remember that they will not have to come from the local area. Local connections are valuable and we should not be keen to lose them.
It is at least controversial that a probation trust will not be required to include representatives of local businesses or of the wider community who would be in a better position to represent the wishes of the local community. The importance of the local community having faith in the probation services to help with rehabilitation, as I mentioned earlier, cannot be overstated. Does the Minister agree that we need to encourage the local community to engage on a much wider basis than hitherto with ex-prisoners to help in their rehabilitation process and encourage local voluntary groups—churches spring to mind—to get involved in this process if reoffending is to decrease?
Without that involvement, frankly, so much of what we might hope to achieve is simply a wish list. It is vital that those groups are involved if reoffending is to decrease as we all want. We need as many connections to the local community as possible to ensure that provision is community led. It is local people involved in the probation service who understand the needs of the service and who should be able to help form a service in their own area which works according to the needs of the area.
Why councillors and magistrates? We would probably all agree that local councillors, as representatives of their local communities, are best placed to ensure that the views of the local community are heard on the probation board. It seems that that would also create a level of local accountability in the probation trusts similar to that on probation boards. That will encourage the local population’s faith in the trust and encourage co-operation by the local community with the trusts.
Magistrates, as the hon. Member for Hornchurch said a few moments ago, play a central role in this process. We need to be careful to keep them fully involved and to ensure that the courts are not unwilling to give out community sentences. They need to be assured of the success and effectiveness of those community sentences. I should be interested in the Minister’s comments on that.
Finally, the probation service is and always has been linked to the magistrates courts. The service provides reports and information to magistrates and supervises people put on orders. The magistrates have always been a part of the local community and their membership has been drawn as widely and diversely as possible from those communities. Does the Minister therefore agree that it is essential that magistrates continue to have a lead role in the management of the probation service?

Gerry Sutcliffe: I am grateful to the hon. Member for Cheadle for the manner in which he spoke to his amendment. We are all trying to achieve the same objective. It is just a question of how we get there. Of course I agree that we have to involve the widest range of people to tackle reoffending. That goes to the heart of what I want to achieve. I often say that in my time as an MP and as a councillor, I never fully understood the impact of the criminal justice system on people inour communities. It was always someone else’s responsibility. I was concerned about employment, education, health and other major issues. The reality is that offenders are affected by all those issues. We must start seeing offenders for what they are—part of our communities. Offenders come from our communities. It is not someone else’s problem. It has to be tackled by our society and our communities. The reason for moving towards the trusts is to tackle that problem.
Much has been made of our proposed changes to the membership of the trusts. Quite reasonably, concern has been expressed about the size of the trusts and the removal of some of the member requirements. I shall try to demonstrate that those concerns are misplaced. The provisions in schedule 1 relating to the employment of trust members are deliberately designed to allow for flexibility and to afford the trusts greater independence in determining their own requirements. We want the trusts to be able to judge for themselves how they should best be constituted to meet those local needs. We want to be able to appoint the right people for the job, not to have to fill particular categories. That does not mean that we do not attach any value to the expertise that those categories represent. Of coursewe do.
To respond to the hon. Member for Hornchurch on the point about remuneration for members, that would be done as set out in paragraph 5. Members of existing boards are paid attendance allowances, and that will continue for trusts. Board chairs receive annual salaries, and members get pro rata amounts for attendance. Similar arrangements will apply to trusts. It is also intended that there will be continuity of chairs and members, but that the Secretary of State will reserve the right to not appoint if there are outstanding issues. As I said earlier, I am heartened by the high calibre of participants and the range of abilities that was demonstrated when we recruited the new chairs of boards. The good thing is that there was an overwhelming choice—people wanted to come forward.

Neil Gerrard: It would be helpful if the Minister were to clarify how many probation trusts he envisages us ending up with. I do not expect him to give us an exact number, but at the moment we have 42 probation boards. I am not clear whether the intention is that, at least initially, each of those boards will transform itself into a trust or whether there will be a significant change in the number at an early stage. The number does matter—a small number means bigger areas, and that in turn has implications for local representation and local accountability, which becomes more and more difficult the bigger the area that the trust has to cover. For instance, it would be enormously difficult to try to have representation across the whole of London.

Gerry Sutcliffe: I understand my hon. Friend’s point. We have no magic figure in our heads about the number of trusts. I have also said that if all the boards want to become trusts and they meet the criteria that we are going to develop on consultation, we will be happy. That is why we do not want to restrict the make-up of the trusts by prescribing who can or cannot sit on them. It might help my hon. Friend if I go through the amendments; then he can see how he feels about my explanation.
Paragraph 3 states:
“A probation trust shall consist of a chairman and not less than four other members appointed by the Secretary of State; and the chief executive”,
and amendment No. 7 proposes increasing “four” to “five”. As I said, there is no science underlying the proposed figure. I fully accept that in many, perhaps most, cases, trusts will need to have more members than that. We are merely setting a minimum. Our intention is to allow the size of the trust to match the work that it will carry out, and to adapt to any change that might occur over time. In practice, it is likely that the trusts will have more than the minimum number of members, but they will not be required to do so if that is not necessary. Having too many members would increase costs and slow down decision making. The key point is that the number for an individual trust will be a policy matter to be agreed between the chair and the Secretary of State. It is worth noting that 36 of the current 42 probation boards have sought to reduce board membership as a result of the opportunities that exist under recent changes.
Amendment No. 27 proposes that the trust chairman should be a judge of the High Court or the Crown court. Boards already have a close relationship with the judiciary, which is valuable and needs to be maintained, but requiring judicial members to sit on trusts is not the right way to do that.
In October 2005, we published a consultation paper seeking views on our proposals to enable other providers to deliver probation services and to create probation trusts. In response, even those members of the judiciary who expressed concern about our proposals acknowledged that in a world of multiple providers it would not be appropriate for judges to be appointed to probation trusts. It would be particularly inappropriate for them to chair trusts; indeed, I doubt that many of them would have the time or the inclination to take on such a role.

Robert Flello: Does my hon. Friend agree that a couple of the positions on a board of this nature should be taken by housing experts, given the connection between housing and offending, or by drug experts, given the connection with drug misuse? Those are the sort of people who should be welcomed on to such boards.

Gerry Sutcliffe: I entirely agree with my hon. Friend. That goes to the heart of the point that we were discussing last Thursday—where do we stop when it comes to saying who has to be on the board? I certainly see the bodies that he mentioned being represented as a crucial element of resolving the problems that we face. That gives me an opportunity, because I forgot this morning to answer a point that the hon. Member for Hornchurch made about the involvement of the learning and skills councils in the education service. He will be pleased to know that more than 10 per cent. of adults who gain basic skills gain them in prison, which is a useful statistic about what goes on in our prisons. Employment on release from prison is up by 10 per cent. from 10 years ago to 37 per cent. A new service called the Offender Learning and Skills Service—OLASS—has been established and probation boards are represented on local commissioning boards that operate in that area.

James Brokenshire: I am grateful to the Minister for coming back on that point. The clarification that I sought was about the joint commissioning and the seamless service that would need to be provided given what he has said about the importance of basic skills, improving rehabilitation and reintroducing offenders back into the community.

Gerry Sutcliffe: There would clearly be a crucial role for the commissioners in helping offenders to stop reoffending through the educational skills that they need. The commissioner would have to consider that and I am sure that local discussions would take place with local bodies.
I want to nail the issue of local support and approval. Yes, the commissioners are regional offender managers, but, as I have already pointed out, in the duties that forthcoming local government legislation places on the probation service for local area agreements, we wanted to avoid the duplication and further development of the number of bodies that consider those issues. It is entirely sensible to concentrate on the existing structures, such as the local strategic partnerships and the local area agreements. We have already set up the crime and disorder reduction partnerships and we have the local criminal justice boards. There is a great deal of local representation on all those, and that would be the route by which we would try to achieve the best outcomes in offender management.
I also talked about the links between NOMS and sentencing, which will remain vital. We are creating local forums for sentencers, NOMS and probation providers to discuss all the issues of local concern. Regional commissioners will have links with sentencers at a regional level via protocols that will inform decisions about which services are commissioned. Amendment No. 8 states that in addition to a chairman and a chief executive, the five or more other members of a trust should also include a magistrate. Amendment No. 39 would add a local councillor to that requirement. As I said, I have many friends who are local councillors. Amendment No. 27 goes on to propose that other members of a trust should include at least one of a district judge, a member of a police authority, a psychiatrist or a member of the local authority. Individuals from all those categories are likely to have something to offer, but so may many others, as my hon. Friend the Member for Stoke-on-Trent, South pointed out.
We believe that we need the freedom to be able to appoint individuals on the basis of their skills and expertise and on how they relate to the needs of a trust at any given time. Even today the needs of boards differ according to their size or location. That variation may increase in future and we need to be able to respond accordingly. The recruitment exercises to replace members of the probation boards are showing diversity in the skills offered by applicants.
Amendment No. 27 would also require that as far as possible members should be representative of the local population. We remain committed to diversity in the selection of trust members and have a good record in that area. In 2000, Her Majesty’s inspectorate of probation carried out a thematic inspection of race equality in the probation service and the follow-up report in 2004 noted that 16 per cent. of probation board members came from a minority ethnic background. We do not believe that we need any additional legislation to maintain that record, and it is hard to see in practical terms how what is envisaged in the amendment would help. That amendment and others add nothing of substance to the Bill or they add inappropriate restrictions that would hinder, rather than support, the effectiveness of public sector providers. I therefore hope that the hon. Member for Hornchurch will ask leave to withdraw the amendment.

James Brokenshire: This has been a helpful and informative debate, which has re-emphasised the need for good community and local links to probation trusts to ensure that they properly reflect their communities, giving them the best opportunity to rehabilitate offenders and to provide services that take account of local conditions and the wishes of the local community.
A number of interesting points have been made in the debate. I take on board the need for representation to be as wide as possible and for the Committee to consider the issue more generally. The intervention by the hon. Member for Stoke-on-Trent, South was helpful in reminding us of the issues that offenders must address if they are to turn their lives around. Often their dysfunctional lifestyle, a lack of family support, a lack of housing, mental health problems, drug problems or other issues in their background lead  to criminal behaviour or are a factor in that behaviour. I want the probation trusts to have a greater involvement with those sorts of issues, if they are subsequently established within the framework in the Bill.
That does not rule out the opportunity to be more specific in respect of certain requirements that would be expected of probation trusts. The Minister is clearly not persuaded by the argument for including a more formal structure in the schedule. I will reflect on what he has said and consider what further action may be taken to establish an advisory relationship alongside a probation trust. We will think about whether it would provide a sufficient connection to make or preserve local links and ensure that services are delivered in the way in which we would expect. As we discussed this morning, local authorities have a key role.
The Minister talked about local strategic partnerships, CDRPs and local area agreements between various central and local governmental agencies to ensure that improvements are made in key indicators and outcomes. That framework must be considered in terms of the structure of the probation trusts and their membership.
The Minister has referred to regional offender managers. Again, he made a plaintive request that we believe that this is not a top-down approach and that it is about local delivery. Again, I have heard what he has said, but he will not be too surprised to learn that I have not been persuaded by his arguments. However, in the context of what he has said about a further review of this particular aspect of the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Neil Gerrard: I beg to move amendment No. 35, in schedule 1, page 23, line 15, leave out
‘are for the Trust to determine’
and insert
‘shall be determined by the Secretary of State’.

Peter Atkinson: With this it will be convenient to discuss amendment No. 36, in schedule 1, page 23, leave out lines 22 to 29.

Neil Gerrard: The amendments concern the part of the schedule that deals with the terms of employment and pay of the people who will work for the probation trusts. Paragraph 7(2) states that the terms of employment of any employees are for the trusts to determine, which will inevitably lead to variations in employment between different trusts. Paragraph 8 contains a caveat that pay, pension and other allowances will require the approval of the Secretary of State. A further caveat allows the Secretary of State to decide not to use that power. The effect will be the disappearance of national collective bargaining on pay and conditions, which has been in place in the probation service for more than 60 years. Instead, we will end up with multiple providers and multiple negotiations over conditions of service, which is not a recipe for a service that will operate well.
I have seen something similar happen in my previous area of employment, when further education colleges, which used to be subject to national collective bargaining under the control of local education authorities, became independent corporations. The effect has been to break down national negotiations over a number of years, which has led to varying terms and conditions in different institutions. That approach does not work well, and multiple negotiations do not help. It is not only the 42 probation trusts that will be affected, because there will be multiple other providers, too. As negotiations on pay and conditions are broken down into smaller and smaller units, there will inevitably be employers who are poor at negotiating. I have seen it happen: the result is unnecessary disputes, because some of the people conducting the negotiations do not have a clue what they are doing. I am concerned that we are going down that route.

Robert Flello: Does my hon. Friend share my concern that, in an area such as my constituency, where wages are below the average for the wider west midlands, officers who are doing exactly the same job as those in other parts of the country will be paid considerably less, despite the fact that they are equally professional and good at their job?

Neil Gerrard: The concern is that we will move in that direction. If staff are transferred from one provider to another when a new provider comes in, they will have the protection of TUPE. There are also the two-tier work force regulations, so there is some protection to help people who are transferred. It is not only a question of what happens in the initial stages, but of what happens in the longer term as new providers come in which are not simply transferring staff from the existing national service. All the evidence from the experience of the Prison Service is that the terms and conditions for staff in private prisons are significantly lower than in the public sector. It is a question of not only pay, but conditions—the Bill specifically mentions pensions and allowances.
What will happen to people’s career development? A national structure, as now, certainly helps if a probation officer moves from one area to another. Continuity of service and how that counts towards pay, grades or pensions, or how that relates to service entitlements such as annual leave, are not at issue. That is all simple and straightforward with a national structure and with the national professional career structure that follows from that. The fragmentation of that national structure, which will be the consequence of the schedule as it stands, is going to cause problems.
At the moment, the staffing levels of the national probation service are currently about 21,000, which is a relatively small number of people to negotiate on a collective bargaining basis. If we split that 42 ways or more, in some cases we will have a very small number of people negotiating about pay and conditions, which I do not see working. That will cause problems. The NOMS briefings issued by the Home Office state that there are no plans to move away from collective bargaining, but they specifically do not mention national collective bargaining. There is an important difference between “collective bargaining” and “national collective bargaining”.
I do not understand the need for sub-paragraphs (2) and (3) of paragraph 8. The provision in sub-paragraph (1) that the determination of the terms of employment—remuneration, pensions, allowances—
“requires the approval of the Secretary of State”
seems to be there as a safeguard, which should ensure that an individual provider is not able to shift pay and conditions a long way from the norm, particularly not downwards, which would be the obvious fear. However, the rest of paragraph 8 then gives the Secretary of State the power to ignore that. He can just say that, for the time being, he will decide that that will not apply. He might decide that that is not going to apply to an individual trust or even across the board. In what circumstances does the Minister think that he might wish to do away with any safeguards that he is putting in place on pay and conditions, which is the total effect of paragraph 8?
That is the almost inevitable consequence of the fragmentation that we are likely to see, if the Bill goes through in its present form. If we end up with large numbers of relatively small providers in the business, particularly in the private sector, then ensuring that national collective bargaining, national pay rates and national terms and conditions apply will be very difficult. We do not want to see a situation where two people doing identical jobs, maybe just a few miles apart, are on completely different terms and conditions of work, pay and pensions. That is where the schedule will lead us, if it stays as it is. I hope that my hon. Friend the Minister will reconsider it and explain why he believes it necessary to take away the safeguard of requiring the Secretary of State’s approval of pay, pensions and allowances, which will be an important issue for people who might wish to work in the service.

James Brokenshire: I rise to speak briefly on the amendments. I heard clearly what the hon. Member for Walthamstow said, and the Minister might be interested to know that I do not particularly want to dwell on the private grief on the Government side of the Committee.
My normal criticism of the Government’s top-down approach might not be so appropriate in this case, given that the schedule provides some discretion at local level. If the Minister is going down the dynamic, competitive route of promoting innovation in services and their delivery, the probation trusts, even if they are intended to compete against each other, will need flexibility in relation to the manner in which they operate if that model is to be effective.
On career development, a relevant question is how standards will be maintained in the system through training. The Minister addressed the importance of that this morning and said that the contractual framework would ensure certain standards of training and provisions on meeting the cost of training. When we discuss the designation of officers of providers of probation services under clause 6, we will ask how that will be measured and what standing the individuals in question will need to have. My concerns about the standards to be applied may well be dealt with then.
I will listen with interest to the Minister’s response and see whether he is able to square the circle of the points raised by his hon. Friends.

Gerry Sutcliffe: I am grateful to my hon. Friend the Member for Walthamstow for raising serious points. I know that he will accept that the present Government have done more for the protection of employment rights than any previous Government. Prior to my role in the Home Office, I was happy to be the Minister responsible for employment relations and rights and employees’ terms and conditions. In fact, I have had some interesting ministerial roles: I was also the Competition Minister, so I fully understand competition. We part company from the official Opposition because they believe in the free market whereas we believe in fair markets and in establishing rules and regulations that create fair market conditions.
My hon. Friend paints a picture of doom and gloom. Are we engaged in a race to the bottom? Are the proposals about devaluing the role of probation officers and providers, getting things on the cheap and thereby affecting the quality of the service? I say to him that they are not. I said earlier that I fully understand the role of the trade unions and their desire to protect their members’ terms and conditions.
Paragraphs 7 and 8 of the schedule deal with the arrangements for trusts to employ staff. Paragraph 7 states that the terms of employment
“are for the trust to determine.”
Paragraph 8 allows but, importantly, does not require the Secretary of State to approve the terms of employment determined by trusts. AmendmentsNos. 35 and 36 would restrict that flexibility by requiring the Secretary of State to determine terms of employment. The current provisions in schedule 1 are designed to allow flexibility for the long term and to leave sufficient room for manoeuvre to respond to circumstances that we cannot yet foresee. I believe we should never say never, so we should not rule out for all time the possibility of trusts determining their own pay and conditions at some point in the future. If, at that point, it becomes appropriate for trusts to set their own pay levels, surely it would be wrong if primary legislation prevented that from happening.
However, I assure my hon. Friend that that is not what we have in mind. We do not think it is appropriate for individual trusts to set their own terms and we have no plans to change the current arrangements whereby pay, terms and conditions are negotiated nationally. I hope my hon. Friend will agree that the provision is sensible. I acknowledge the seriousness of the issues he raises, but it would be wrong to prevent us from ever taking that opportunity. There are currently no plans to do so. I know from the strength of representations from the trade unions involved that they would resist the Government if our intention was to go down that route—but it is not.
As I have said, my hope is that the public sector will rise to the challenge and that the probation trusts will be public sector-led, but in the spirit of trying to be dynamic and to open up the opportunities in the Bill, I hope that my hon. Friend will accept my assurances and withdraw the amendment.

Neil Gerrard: The Minister has made some helpful comments about there being no plans to change the current arrangements on national negotiation. As far as I can see from the schedule, that would apply to pay  and pensions and so on, but not necessarily to other terms of employment. Paragraph 7(2) states specifically that
“The terms of employment ... are for the trust to determine”. 
Although the Minister has gone some way in dealing with pay and pensions, he may not have dealt with some of the other aspects.
I am not predicting a race to the bottom. Some of the people involved in probation boards now, who may well be involved in probation trusts in future, are not unreasonable people who would behave irresponsibly, but the more fragmented the system becomes, the more likely it is that somebody, somewhere—a trust or employer—will see the provision as a way of driving conditions down.
The word “flexibility” always worries me; almost every time it is used, it seems to indicate that something nasty that I would prefer not to happen will happen. The Minister said the measure may be used “at some point in the future”. I hope we do not get to that point, because it will not be a particularly efficient way of dealing with pay, pensions or that sort of issue. To have multiple negotiations with multiple providers does not seem the right way to go. When that has happened in other places, it seems to have led to completely unnecessary disputes that could have been sorted out if the matter had been dealt with at regional or national level.
I accept the assurance that the Minister gives about there being no plans to change the present position. I do not wish to press my amendment to a vote at this time, but will think again about whether we might wish raise the matter on Report. For the time being, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Brokenshire: I beg to move amendment No. 9, in schedule 1, page 25, line 1, leave out sub-paragraph (3).
We now move on to paragraph 14 of schedule 1, on the duty to comply with directions. Paragraph 14 states that
“A probation trust must comply with any general or specific directions given to it—”

Peter Atkinson: Order. I am a little confused. Is the hon. Gentleman talking about amendment No. 9? He seems to be talking about amendment No. 10.

James Brokenshire: Thank you, Mr. Atkinson. Amendment No. 9 would remove sub-paragraph (3) of paragraph 14, which is the paragraph I was quoting. I hope that I can explain the relevance of what I was saying in the context of that sub-paragraph. Paragraph 14 starts:
“(1) A probation trust must comply with any general or specific directions given
to it by the Secretary of State”.
It continues:
(2) In particular, a probation trust must provide the Secretary of State with any information relating to the performance of its activities”.
Sub-paragraph (3) states:
“Different directions may be given under this paragraph for different purposes and in relation to different probation trusts.”
 Amendment No. 9 would delete that sub-paragraph.It is a probing amendment to give us a better understanding of how paragraph 14 will operate as it seems to state that different directions may be given to different probation trusts for different purposes. How will compliance with general requirements fit in? If there is a general requirement for a probation trust to act in a particular way, it seems strange that under sub-paragraph (3) certain probation trusts might not be required to comply with that more general requirement. In what circumstances might some sort of waiver or exclusion be appropriate?
There is a general point in relation to paragraph 14 and the power relating to general or specific compliance by a probation trust. There may be circumstances in which there are separate contracting arrangements that may sit below the probation trust. For example is it envisaged that the Secretary of State could order that a particular subcontractor’s contract be terminated? What would happen in those circumstances in relation to any potential liabilities or damages that may accrue? That sort of exclusion may be what was intended in sub-paragraph (3). Some sort of confirmation of the intent of paragraph 14 and the exclusions that might apply is needed.

Mark Hunter: I rise to speak only briefly on amendment No. 9. I support the argument made by the hon. Member for Hornchurch. The crux of the matter is found in what could be considered to be a fairly vacuous phrase:
“Different directions may be given under this paragraph for different purposes and in relation to different probation trusts.”
In effect, that means that the Secretary of State can act differently with different trusts, as he sees fit. I, too, look forward to hearing the Minister’s comments. The key issue, at least for some of us, is the amount of power that we invest in the Secretary of State. We may not always be as fortunate as we are now with the occupant of that office.

Crispin Blunt: What?

Mark Hunter: I thought that the hon. Gentleman would recognise that I was being ironic. There is an important issue about not just considering legislation in the context of the here and now, and the current occupants of such offices, but being aware of other possibilities in future. For that reason, and because too much power is already vested in the Secretary of State—with little indication of counterbalance by way of public accountability, as was said earlier—it is important that the Minister gives serious consideration to the amendment. I look forward to hearing what he has to say about it.

Gerry Sutcliffe: I do not know whether it is the time of day, but hon. Members are becoming more suspicious of the powers of the Secretary of State. I hope to reassure them that those are entirely appropriate.
As the hon. Member for Hornchurch said, paragraph 14(1) of schedule 1 requires a probation trust to
“comply with any general or specific directions given to it by the Secretary of State in connection with the carrying on of any of its activities.”
Paragraph 14(3) states that different directions may be given for different purposes and in relation to different trusts.
Although the wording is slightly different, the effect of that paragraph is the same as that of existing legislation, as applied to local boards in paragraph 14 of schedule 1 of the Criminal Justice and Court Services Act 2000, so there is nothing new at all in what we propose. Paragraph 14 does not restrict the types of direction that might be issued, but sub-paragraph (2) gives an example of what we have in mind, namely directions requiring a trust to provide information relating to its performance. The effect of the amendment will be to cast doubt on the ability of the Secretary of State to issue different directions to different trusts for different purposes.
As I have indicated, that will be more restrictive than the existing law, and it will be particularly inappropriate for a future world in which there is likely to be greater diversity between trusts and a greater need for different directions to be issued. At the outset, we expect to treat all the trusts the same, but that might not always be the case. For example, in future, not all trusts will necessarily deliver the same range of services, so if a particular direction is relevant to only one area of service provision, it will be pointless to issue it on a blanket basis to all trusts. We might, in due course, decide to allow some trusts that are performing particularly well greater autonomy than others. We have no specific plans in that regard at the moment, but it would be foolish to rule out such flexibility for the future.
We need to strike a balance between retaining appropriate controls over what will continue to be public sector bodies and avoiding excessive bureaucracy and unnecessary interference from the centre. The appropriate balance may evolve over time and in different ways for different trusts. I hope that hon. Members will accept the need for flexibility, that they will believe that there is no need to be so suspicious and that they will not press their amendments.

James Brokenshire: I hear the Minister’s counsel not to be suspicious, but if we are to do our jobs, it is appropriate for those on this side of the Committee to be suspicious of powers that are vested in the Secretary of State. We have already debated this afternoon the greater control and the focus on what we see as the top-down approach, with more power being ceded to and vested in the Secretary of State. That always makes me suspicious, whatever the context in which it arises.
I note the Minister’s comments on the amendment. It is important that reporting is done, and that information on compliance with contractual provisions and performance criteria that might be applied to a particular probation trust are provided in a timely and appropriate fashion, given that we all agree that the protection of the public has to be a paramount requirement, and that it is appropriate in certain circumstances for the Secretary of State to require that information be provided to ensure that a fundamental underpinning obligation is being appropriately and adequately met. In the context of what the Minister has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Brokenshire: I beg to move amendmentNo. 10, in schedule 1, page 25, line 2, at end add—
‘( ) A probation trust must comply with the duties set out in sections 10 and 11 of the Children Act 2004 (c. 81)’.
The amendment is intended to re-emphasise the importance of compliance in the Children Act 2004. Probation boards are included under section 10, which places a duty on agencies that provide services for children to co-operate with local children’s trust arrangements to improve the well-being of the children and young people in the relevant local authority’s area. Section 11 places duties on specific agencies, including probation boards, to ensure that they discharge their services
“having regard to the need to safeguard and promote the welfare of children”.
That point has been highlighted by the Standing Committee for Youth Justice. In its view, it is vital that those duties are effectively transferred to the new probation trusts.
The amendment is intended to elicit greater information and clarification on the specific obligations and requirements in the 2004 Act that the probation boards currently meet and comply with. Perhaps that needs to be examined in the context of the Act itself; an amendment to it might be required to reflect the changed situation and the arrangements contemplated in this Bill.
In any event, the protection of children is an extremely important aspect of what is before us. As we have heard, education is key, but public protection of children at risk, who may be in vulnerable situations, is also extremely important. The Committee should restate that this afternoon. It is imperative that the Minister state the situation to ensure that nothing will be lost and that the obligations and requirements of the 2004 Act will be maintained, adhered to and followed through, whatever arrangements we end up with as a result of our consideration of the Bill.

Mark Hunter: I want to say a few words about the amendment, although most of the ground has been covered by the hon. Gentleman. I want to talk from my own perspective about the amendment’s importance and what it is designed to achieve. We have heard several times about the importance of protecting children, which is crucial to what we are trying to do. However, the amendment would place a duty on probation trusts to co-operate with local children’s trust arrangements as set out under section 10 of the 2004 Act and to ensure that they discharge their services with regard to the need to “safeguard and promote” the welfare of children under section 11.
As we know, that includes co-operation with the local authority, its relevant partners and other agencies that conduct any work relating to children—a district council, police authority, youth offending team, strategic health authority, primary care trust, learning and skills council and other bodies that provide services under section 114 of the Learning and Skills Act 2000.
There are five important considerations: the physical and mental health of the individuals and their emotional well-being; protection from harm and neglect; education, training and recreation; the contribution made by them to society; and finally, social and economic well-being. I am sure that the Minister will want to address such concerns in his response.
Why is the amendment needed? Probation boards were included in sections 10 and 11 of the 2004 Act as agencies that provide services to children. They therefore need to co-operate with the local children’s trust arrangements. That duty needs to be transferred to the probation trusts so that they can effectively co-operate with the agencies to ensure that the care and management of young offenders is co-ordinated and is consistent with their services in other areas. That will help to create good end-to-end management, which I know that hon. Members from all parties agree is important, especially when children come into contact with many different agencies through schools, care homes and the like. It is important that those groups have the necessary information to ensure that the well-being of the child is looked after consistently.
Co-operation also includes transferring information between the different agencies and organisations. Both that and the joined-up projects between Government agencies could help to stop young people, especially those in care, from getting into trouble to start with. It would certainly help with rehabilitating young offenders back into the community. I look forward to the Minister’s comments on those concerns.

Vernon Coaker: May I preface my remarks by thanking the hon. Members for Hornchurch and for Cheadle for their points? They are extremely important and there is no division in the Committee when we talk about the importance of the Bill leading to greater public protection. When we start to talk about the protection of children in particular, it becomes even more real to us all. I thought that the way in which the hon. Gentlemen made their points added to the consideration of the Bill by the Committee. From the perspective of the Government, there is no difference between any of us on the point. We expect to see sections 10 and 11 of the Children Act 2004 applied as rigorously and as fully as they are at present to the whole range of operation of any new system.
I want to make some remarks with specific reference to the amendment. The references to local probation boards in the 2004 Act are just two examples of many references to local probation boards throughout the statute book. Many of those references place duties on local probation boards to carry out certain functions, and often they concern joint working with criminal justice and other statutory agencies. Let me make it clear, as I said at the beginning, that we remain committed to maintaining the position of probation in all those areas. We recognise that all the statutory references will need to be updated to take account of the fact that probation boards will ultimately cease to exist. However, the way to do that is not simply to place on probation trusts the requirements that apply to probation boards, which is the effect of the amendment.
We need, too—I hope that the hon. Gentlemen will accept this—to take account of the fact that in future probation trusts will work alongside other providers to whom those statutory provisions might also need to apply. Although a consequential amendment is therefore necessary to sections 10 and 11 of the Children Act, I do not think that that needs to be set out in the Bill in this way. In due course we will table a consequential amendment to ensure that the relevant duties continue to apply when probation boards cease to exist. In light of my comments, I hope that the hon. Member for Hornchurch will feel able to withdraw his amendment.

James Brokenshire: I thank the Minister for the manner in which he has responded to the amendment and for his reassurance that the issues will remain a high priority in how services are undertaken, whoever they might subsequently be carried out by. The Minister made the point that the arrangements could lead to other providers becoming involved in service provision. We need to contemplate that point. His point about the amendment is fair and justified, and we will review the amendment that the Minister has promised to table on the matter. On the basis of that commitment and because our amendment does not properly address the wider aspects discussed in this debate, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the First schedule to the Bill.

James Brokenshire: Before we leave the schedule, I would appreciate clarification on a few technical points. Paragraph 1(1) states:
“A probation trust is a body corporate.”
I assume that it is intended to establish the probation trusts as companies limited by guarantee rather than as any other corporate structure, but I would appreciate the Minister’s confirmation of that point.
Paragraph 1(2) states:
“The name of the trust is that specified in the order establishing it.”
Will the Minister consider tabling an amendment to include any subsequent order amending it? Clause 4(1)(b) states that the Secretary of State
“may by order...establish a probation trust for purposes specified in the order”,
so in those circumstances, the name would be as stated in the subsequent order rather than in the establishing order.
Paragraph 2 states:
“A probation trust is not to be regarded as the servant or agent of the Crown”.
The Minister might recall, although maybe notwith fondness, our discussions on the Corporate Manslaughter and Corporate Homicide Bill. I would be grateful if he were to confirm the status of probation trusts under that Bill and in connection with any associated liability.
Paragraph 4 deals with the removal of an appointed member. It would be helpful for the Committee if the Minister were to clarify the circumstances envisagedfor the removal of a member, so that it would not be done peremptorily or unreasonably, given that those members’ functions might sometimes include raising issues about the maintenance of probation services, which might make Ministers or the Government uncomfortable. We need to ensure openness and dialogue without fear of removal.
I come to paragraphs 6(2) and 8. We have debated general employees, but in connection with the chief executive, probation trusts might have issues attracting suitable members and executives to drive them forward. Particularly if we enter a competitive and dynamic situation in which other providers try to muscle in on the market, it is important not to leave probation trusts at a competitive disadvantage by allowing the Secretary of State to refuse certain arrangements. Some clarification on the specific issue of chief executives in addition to our wider debate on general employees would be helpful.
Paragraph 12(2) states that a probation trust “may not hold land”. Will the Minister confirm that that includes land in its broadest sense, and that the provision is in no way intended to fetter the probation trust’s ability to hold leases, to have other holdings, to provide its services from such properties or, indeed, to have offices at such properties? The paragraph mentions managing “land held by another”, but I would appreciate clarification to ensure that that will not be an unnecessary fetter.
Is the statement of accounts required by paragraph 13(1)(b) the same—assuming that the probation trust is a company limited by guarantee and established under the Companies Acts—as the requirement to file accounts? Will the accounts be one and the same, or will two separate sets be prepared on a different basis? If there is to be duplication, why is it necessary? And will there be a requirement for a separate financial statement to be audited, as later paragraphs of the schedule suggest?

Gerry Sutcliffe: I am grateful to the hon. Gentleman for asking those questions about this schedule, which goes to the core of the Bill. He is quite right to do so, and I shall do my best to answer his questions. If I miss any, I shall ensure that he gets the answers in writing.
On the hon. Gentleman’s first point on probation trusts as corporate bodies, it is clear that trusts will not be companies limited by guarantee. They will be normal bodies corporate, with no change from the legal status of the current boards. Most of the schedule is based on existing legislation, and many of his questions are covered by those provisions. The key difference is that we are seeking greater flexibility to give the trusts greater independence from the centre. He keeps saying that it will be a top-down system, but we are trying to give trusts the flexibility and freedom to do a good job.
I am pleased that the hon. Gentleman has recognised that we are the first Government to move on Crown immunity, and the probation trusts will be covered by the provisions on the Crown acting as employer, which he will remember from the discussions on the Corporate Manslaughter and Corporate Homicide Bill. They will be in the same position as any other Government service. The holding of land will be the same as it is now—as one would expect, trusts will not be prevented from holding leases.
I wish to spend some time discussing the role of the chief executive, because the hon. Gentleman made a fair point in saying that there will be a change in line management and the relationship with the chief officer. Both the chiefs and chairs of the probation boards will be appointed by the Secretary of State, which will create a lack of clarity about the lines of accountability and the relationship between the chief and the chair. As the hon. Gentleman has said, paragraph 6 provides for the chief executive to be appointed by the trust itself, which will clarify accountability and give the trust greater independence to run its own affairs.
Paragraph 6(3) makes a transitional provision by allowing, though not requiring, the appointment of the first chief executive of a trust to be made by the Secretary of State. That will facilitate a smooth transition between board and trust status, so that an existing chief executive can be transferred from one to the other without a fresh appointment round. Once appointed, whether by the Secretary of State or the trust, the chief executive will become a full member of the trust and provide an executive presence on the governing body. His employment status will remain different from that of members appointed by the Secretary of State, who will retain the power to determine the chief executive’s terms and conditions and to dismiss him, if appropriate.
The removal of members will be by a procedure similar to the current one. It will be about removing not people who disagree but those who act inappropriately. As one would expect, there are clear procedures in place for people to be removed and to have the opportunity to appeal. The chief’s employment status in that regard will be the same as that of other staff. The schedule gives us an opportunity to create flexibility, but it does not stray too far from the principles agreed in the 2000 Act.

James Brokenshire: I rise briefly to add that I asked a couple more questions on accounts and the names of the trusts, but I take on board what the Minister has said about sending me a letter on those points.

Question put and agreed to.

Schedule 1 agreed to.
Further consideration adjourned.—[Mr. Alan Campbell.]

Adjourned accordingly at twenty minutes to Seven o’clock till Thursday 18 January at Nine o’clock.